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Wednesday, May 26, 2010

Iron Mountain Information Management, Inc. v. The City of Newark (A-100-08)

Iron Mountain Information Management, Inc. v. The City of Newark (A-100-08) 5-19-10

The Legislature intended to limit the right to actual
notice of blight designation to owners of record and
those whose names are listed on the tax assessor’s
records. Based on the facts presented, Iron Mountain
was not deprived of any due process protections
afforded by the New Jersey or U.S. Constitutions.

POWERHOUSE ARTS DISTRICT ASSOCIATION, ET AL. V.CITY COUNCIL OF THE CITY OF JERSEY CITY, ET AL. (A-4570-08T3)

POWERHOUSE ARTS DISTRICT ASSOCIATION, ET AL. V.CITY COUNCIL OF THE CITY OF JERSEY CITY, ET AL. (A-4570-08T3) 5-17-10

In this action in lieu of prerogative writs, we hold that,
unlike a blight designation, a challenge to a redevelopment plan
amendment adopted by a municipal planning board and city council
(pursuant to the Local Redevelopment & Housing Law (LRHL),
N.J.S.A. 40A:12A-1 to -73), which is a discretionary act of
broader application, must be measured against an "abuse of
discretion," rather than "substantial evidence" standard of
review.

We also hold that industrial lots properly blighted years
earlier pursuant to the LRHL's predecessor statute may be
included under the plan without any further evaluation of
whether they remained in need of redevelopment.

Here, although the plan amendment was somewhat inconsistent
with the historic preservation element of the original plan
adopted only four years earlier, and with the master plan, the
proposal's other benefits outweighed its negative features and
was in the "public interest," so as not to render municipal
action either arbitrary, capricious or unreasonaadequately reasoned and grounded in the record.

JANE COLCA f/k/a ANSON v. DAVID ANSON (A-1822-08T2) 05-21-10

JANE COLCA f/k/a ANSON v. DAVID ANSON (A-1822-08T2) 05-21-10

In this post-judgment matrimonial matter, we rejected
plaintiff's argument that an order entered three years earlier
denying defendant's request that she pay child support was
immutable, forever relieving her of the obligation to support
the parties' unemancipated daughter until and unless defendant
could prove changed circumstances warranting modification of the
prior order's provisions. This position is unsupportable as a
matter of law.

COAST AUTOMOTIVE GROUP, LTD. V. WITHUM SMITH & BROWN (A-0226-08T1)

COAST AUTOMOTIVE GROUP, LTD. V. WITHUM SMITH & BROWN (A-0226-08T1) 05-19-10

The question presented is the scope of an arbitration
clause in a retainer agreement between an accounting firm and
its client. We conclude that their agreement "to resolve any
and all fee-related disputes" in binding arbitration includes
claims of breach of the agreement related to payment owed for
services rendered but not the client's affirmative claims for
consequential damages attributable to breach.

POWERHOUSE ARTS DISTRICT ASSOC V.CITY COUNCIL OF JERSEY CITY . (A-4570-08T3)

POWERHOUSE ARTS DISTRICT ASSOCIATION, ET AL. V.CITY
COUNCIL OF THE CITY OF JERSEY CITY, ET AL.
(A-4570-08T3) 05-17-10

In this action in lieu of prerogative writs, we hold that,
unlike a blight designation, a challenge to a redevelopment plan
amendment adopted by a municipal planning board and city council
(pursuant to the Local Redevelopment & Housing Law (LRHL),
N.J.S.A. 40A:12A-1 to -73), which is a discretionary act of
broader application, must be measured against an "abuse of
discretion," rather than "substantial evidence" standard of
review.

We also hold that industrial lots properly blighted years
earlier pursuant to the LRHL's predecessor statute may be
included under the plan without any further evaluation of
whether they remained in need of redevelopment.

Here, although the plan amendment was somewhat inconsistent
with the historic preservation element of the original plan
adopted only four years earlier, and with the master plan, the
proposal's other benefits outweighed its negative features and
was in the "public interest," so as not to render municipal
action either arbitrary, capricious or unreasonable
adequately reasoned and grounded in the record.

Friday, May 14, 2010

CFG HEALTH SYSTEMS, LLC v. COUNTY OF HUDSON ( A-2034-09T2)

CFG HEALTH SYSTEMS, LLC v. COUNTY OF HUDSON
( A-2034-09T2) 5-14-10

When a local contracting unit awards a contract following
public bidding pursuant to the Local Public Contracts Law,
N.J.S.A. 40A:11-1 to -51, it may not thereafter amend the
contract if the amendment materially changes the terms and
conditions upon which the contract was bid and awarded.

BURNETT v. COUNTY OF GLOUCESTER (A-4329-08T3)

BURNETT v. COUNTY OF GLOUCESTER (A-4329-08T3) 5-10-10

Plaintiff made a request to the County of Gloucester for
production of documents pursuant to the Open Public Records Act
(OPRA), N.J.S.A. 47:1A-1 to -13, consisting of "[a]ny and all
settlements, releases or similar documents entered into,
approved or accepted from 1/1/2006 to present." Alleging
noncompliance, plaintiff then filed suit, but summary judgment
was granted against him on the ground that production was not
required because the requested documents were not in the
County's possession and its Clerk had no obligation to seek them
from sources beyond the County's files.

On appeal, we determined that (1) settlements executed by
third parts on behalf of a governmental entity constitute
government records as defined by OPRA; (2) a request for
"settlement agreements" without specification of the matters to
which they pertain does not constitute a request for information
obtained through research, requiring no response pursuant to
OPRA, but rather a request for a specific document triggering
OPRA's disclosure requirements; and (3) the County was not
excused from its OPRA obligations because the requested
documents were not in its possession.
obtained through research, requiring no

MARCELO BUSTAMANTE VS. BORO OF PARAMUS, ET ALS (A-1869-08T2)

MARCELO BUSTAMANTE VS. BOROUGH OF PARAMUS, ET ALS. (A-1869-08T2) 05-07-10


Plaintiff's complaint alleging violations of 42 U.S.C.A. §
1983, and common law assault and battery, was dismissed pursuant
to Rule 4:6-2(e). Plaintiff had been indicted for resisting
arrest and aggravated assault upon two of defendant police
officers. After pleading guilty to resisting, plaintiff entered
PTI and all charges against him were dismissed.

Defendants argued that plaintiff's civil complaint was
barred by the "unfavorable result" of his guilty plea and entry
into PTI, relying upon the holding in Heck v. Humphrey, 512 U.S.
477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994), and Gilles v.
Davis, 427 F.3d 197 (3d Cir. 2005). The trial judge agreed and
dismissed the complaint with prejudice.

We concluded that plaintiff's civil claims are barred by
the disposition of his criminal charges only if a potential
verdict in the civil case was inconsistent with the underlying
criminal charges. Because plaintiff alleged that the officers
continued to assault him after he was in custody, his claims
were not barred as a matter of lawdismissed pursuant to Rule 4:6-2(e).

Thomas John Salzano v. North Jersey Media Group, Inc. (A-78/79-08)

Thomas John Salzano v. North Jersey Media Group, Inc.
( A-78/79-08) 5-11-10

The fair-report privilege extends to defamatory
statements contained in filed pleadings that have not
yet come before a judicial officer. The privilege is
a hybrid, conditional insofar as it attaches only to
full, fair, and accurate reports of government
proceedings but becoming absolute once those
prerequisites are met. Fault, sufficient to defeat
the privilege, occurs when the publisher fails to do
what is necessary to render the report full, fair, and
accurate. If the publication satisfies that standard,
the state of mind of the publisher is irrelevant. The
portion of the challenged publications that was based
on a bankruptcy complaint was full, fair and accurate,
and thus, immune from a defamation lawsuit because of
the fair-report privilege. Because the publications
also contained defamatory information derived from
sources other than the complaint, plainthis lawsuit in connection therewith.

Wednesday, May 5, 2010

POTOMAC AVIATION, LLC V. PORT AUTHORITY OF NY AND NJ, (A-3128-08T2)

POTOMAC AVIATION, LLC V. PORT AUTHORITY OF NY AND NJ, ET ALS. A-3128-08T2 (5-5-10)

Defendant fell asleep at the wheel of her car and crashed
through a perimeter fence at Teterboro Airport, striking and
significantly damaging, plaintiff's plane. The plane was parked
in a portion of the airport leased by defendant First Aviation
Services from the airport's owner, the Port Authority of New
York and New Jersey. Plaintiff sued both, along with the driver
and owners of the car.

After settling with the driver and owners, plaintiff's
complaint against the remaining defendants was dismissed on
summary judgment. Plaintiff, on appeal, argued that First
Aviation Services was presumed to be negligent as bailee of the
plane, and that both defendants were negligent for failing to
secure the perimeter fence to resist any incursion by vehicles
straying from the adjacent street.

We affirmed the grant of summary judgment on grounds
different than those expressed by the motion judge. We
concluded that plaintiff failed to adduce any proof of the
bailee's negligence beyond the presumption which had been
adequately rebutted. We further concluded that while the
accident was foreseeable, the scope of the duty owed by
defendants, either as landlord or lessee of the premises, did
not include the obligation to place guide rail or other
protective devices along the roadway to safeguard against the
negligence of those using the road.

NEW JERSEY MANUFACTURERS INS. CO. V. NATIONALCASUALTY CO. A-0737-09T3)

NEW JERSEY MANUFACTURERS INS. CO. V. NATIONAL
CASUALTY CO.
A-0737-09T3 4-29-10

An insurer against which a Rova Farms claim is asserted may
raise as an affirmative defense that the case could not have
been settled by deposit of its policy limit plus whatever amount
the insured -- or in this case the excess insurer -- would have
been willing and able to contribute. An insurer against which a
Rova Farms claim is established is only liable for prejudgment
interest above its policy limit for the period of time following
the insurer's breach of its duty of good faith in settlement
negotiations.

FREDERICK VOSS VS. KRISTOFFE J. TRANQUILINO, ET ALA-5431-08T1 (A-5431-08T1)

FREDERICK VOSS VS. KRISTOFFE J. TRANQUILINO, ET AL.
A-5431-08T1 4-28-10

N.J.S.A. 39:6A-4.5(b), which provides that a person
convicted of DWI in connection with an accident "shall have no
cause of action for . . . loss sustained as a result of the
accident," does not bar a dram shop claim by that person.

KITCHENS INTERNATIONAL, INC. VS. EVANSCABINET CORP., ET AL. (A-4289-08T1)

KITCHENS INTERNATIONAL, INC. VS. EVANS
CABINET CORP., ET AL.
A-4289-08T1 4-27-10

The trial court correctly refused to strike plaintiff's
Canadian judgments, which were filed here pursuant to the
Uniform Enforcement of Foreign Judgments Act, N.J.S.A. 2A:49A-25
to -33, but should have stayed enforcement of the judgments,
upon the posting by plaintiff of adequate security, pending a
determination by the court in a previously-filed action as to
whether the Canadian court properly exercised personal
jurisdiction over defendant.

HOMESITE INS. CO. V. SUSAN HINDMAN, ET AL (A-5103-08T1)

HOMESITE INS. CO. V. SUSAN HINDMAN, ET AL
A-5103-08T1 4-23-10

In our interpretation of business and rental exclusions in
a homeowner's policy we concluded that neither barred coverage.
The business exclusion could not apply to rental activity, the
more specific provisions of which should control. Although the
rental exclusion prohibited rental or holding out for rental any
part of the premises, the exclusion contained an exception for
boarders, unless rented or "intended" to be rented to more than
two boarders. We held that, notwithstanding the insured's
rental to more than two boarders for several years prior to the
policy period during which the accident occurred, she had only
two boarders during the policy period, her present intent at the
time of the accident is dispositive, and in the absence of
objective evidence that she intended at that time to rent to
more than two boarders, intent is not established.

TOO MUCH MEDIA, LLC, ET AL. v. SHELLE HALE (A-0964-09T3)

TOO MUCH MEDIA, LLC, ET AL. v. SHELLE HALE
A-0964-09T3 4-22-10

On leave granted in this defamation cause of action, we
hold that the protections of New Jersey's Shield Law, N.J.S.A.
2A:84A-21, do not extend to an operator of a website so as to
bar from disclosure sources from which she obtained information
in her investigation on the online adult entertainment industry
and later posted on internet bulletin boards.

MENA SAADALA v. EAST BRUNSWICK ZONING BOARD (A-4999-08T1)

MENA SAADALA v. EAST BRUNSWICK ZONING BOARD
OF ADJUSTMENT AND 7-ELEVEN, INC.
A-4999-08T1 4-22-10

An application for a use variance for establishment of
a combined convenience store and retail gasoline station,
commonly referred to as a mini-mart, to replace two separate
nonconforming uses for a convenience store and gasoline station,
seeks approval for a new use, which is subject to the
restrictive standards set forth in Medici, rather than the more
liberal standards set forth in Burbridge for a use variance for
expansion of a nonconforming use.

GUACIARO V. GONZALES (A-4988-08T1 )

GUACIARO V. GONZALES
A-4988-08T1 4-15-10

Plaintiffs sought UM arbitration when their vehicle was
struck by an uninsured motorist. Plaintiffs' insurance carrier
rejected the arbitration award. We affirmed the trial court's
order granting a new trial on all issues, as opposed to just
damages, distinguishing Derfuss v. New Jersey Manufacturers, 285
N.J. Super. 125 (App. Div. 1995), and Salib v. AlstoSuper. 108 (Law Div. 1994).

JANET FLETCHER V. CESSNA AIRCRAFT COMPANY (A-4596-08T2)

04-20-10 JANET FLETCHER V. CESSNA AIRCRAFT COMPANY
A-4596-08T2 4-20-10

The General Aviation Revitalization Act of 1994, 49
U.S.C.A. § 40101 note (GARA) is "a statute of repose that
generally bars suits against airplane manufacturers brought more
than eighteen years after the delivery date to an initial
purchaser of the aircraft." Robinson v. Hartzell Propeller,
Inc., 454 F.3d 163 (3d Cir. 2006). It does not apply unless the
action against the manufacturer is one "in its capacity as a
manufacturer." GARA Section 2(a).

The question raised on this appeal is whether an action for
damages based on Cessna's failure to warn of a potential
dangerous condition or to advise about measures available to
avoid the condition or its catastrophic results is one against
Cessna "in its capacity as a manufacturer." We conclude that it
is and reverse the denial of Cessna's motion for summary
judgment on these claims.

ROBERT C. CURTIS v. CELLCO PARTNERSHIP d/b/a VERIZON WIRELESS A-1843-08T3

ROBERT C. CURTIS v. CELLCO PARTNERSHIP d/b/a
VERIZON WIRELESS A-1843-08T3 4/15/10

In this matter, we examined whether plaintiff's claims
under the New Jersey Consumer Fraud Act (CFA), N.J.S.A. 56:8-1
to -106, fell within the scope of the arbitration clause of the
parties' consumer services agreement. In Gras v. Assoc. First
Capital Corp., 346 N.J. Super. 42, 52-54, (App. Div. 2001),
certif. denied, 171 N.J. 445 (2002), we upheld the court's
dismissal of a CFA action as the parties' agreement required
arbitration of "all statutory claims arising out of the
relationship." Although this wireless telephone service
agreement did not specifically include a waiver of the
consumer's statutory claims, we held its language compelling
arbitration and mandating waiver of a jury trial were succinctly
stated, unambiguous, easily noticeable and sufficiently specific
with regard to the actual terms and manner of arbitration,
explicitly informing the consumer that resolution of disputes
would be in an arbitral forum. Rejecting plaintiff's secopoint, we held the contracts use of "∞" was not unconscionable.

IN THE MATTER OF THE PROTEST OF AWARD OF NEW JERSEY ( A-5626-07T1)

IN THE MATTER OF THE PROTEST OF AWARD OF NEW JERSEY
STATE CONTRACT A71188 FOR LIGHT DUTY AUTOMOTIVE PARTS
( A-5626-07T1 ) 4-14-10

In this appeal, we consider a challenge by former suppliers
of auto parts to the State of New Jersey to a contract awarded
by the Director of the Division of Purchase and Property
pursuant to N.J.S.A. 52:34-6.2. This statute authorizes the
Director to enter into cooperative purchasing agreements between
multiple public entities in various states and a vendor. Here,
the Director awarded a contract to AutoZone to supply auto parts to the State of New Jersey in accordance with a Master Agreement
awarded by Charlotte, North Carolina, following a competitive
bidding process.

We held that suppliers of auto parts to the State of New
Jersey, whose contracts with the State had recently expired,
and their business association have standing to challenge not
only the specifications of the cooperative purchasing agreement
but also the award of the contract. To effectuate this holding,
the Director must provide notice to prospective bidders of the
intention to consider utilization of the cooperative purchasing
procurement method and notice of any award pursuant to this
authority.

While acknowledging our limited scope of review, we also
held that the record does not provide sufficient information to
determine whether the AutoZone Contract meets the statutory
standard as the "most cost-effective method of procurement" as
found by the Director. Therefore, we remanded for further
findings of fact.

MIRIAM GONZALEZ V. NEW JERSEY PROPERTYLIABILITY INSURANCE GUARANTY ASSOCIATION, ET AL. (A-1298-07T2 )

MIRIAM GONZALEZ V. NEW JERSEY PROPERTY
LIABILITY INSURANCE GUARANTY ASSOCIATION, ET AL.
(A-1298-07T2) 3-25-10

In this appeal we affirm the validity of the National
Arbitration Forum's Rule 4 (now known as Rule 9), of the New
Jersey No-Fault Arbitration Rules, which requires an individual
seeking emergent medical treatment disputed by a personal injury
protection (PIP) insurer to demonstrate "immediate and
irreparable loss or damage." The challenges included: (1)
whether Rule 4 violates the Administrative Procedures Act; (2)
was ultra vires; (3) imposed additional requirements on PIP
claimants in violation of public policy; (4) contravened the
authority to decide emergent cases by NAF dispute resolution
professionals; and (5) violates equal protection under state and
federal constitutions.

CATHERINE KENNEDY CARCHIDI, ET AL. V. MICHELLE ( A-4986-08T3 )

CATHERINE KENNEDY CARCHIDI, ET AL. V. MICHELLE
A. IAVICOLI, M.D., ET AL. ( A-4986-08T3 ) 3-24-10


To avoid inherent and unjustified prejudice to the medical
malpractice plaintiff and unwarranted interference with the
physician-patient relationship, the defense may not use as
causation experts physicians who have never treated plaintiff
but are members of his treatment group.

PHILIP KOZMA V. STARBUCKS (A-3908-08T3 )

PHILIP KOZMA V. STARBUCKS (A-3908-08T3 ) 3-19-10


The opinion upholds a jury verdict of no compensatory
damages where the jury assigned sixty percent fault to defendant
and forty percent to plaintiff. We determine that the jury was
properly instructed and there was no inconsistency in its
determinations. Satisfied that no miscarriage of justice
occurred, we affirm the denial of plaintiff's application for a
new trial on damages only.

City of Atlantic City v. Zachirias Trupos (A-23-09)

City of Atlantic City v. Zachirias Trupos (A-23-09) 4-26-10

For purposes of RPC 1.9, matters are “substantially
related” if (1) the lawyer for whom disqualification
is sought received confidential information from the
former client that can be used against that client in
the subsequent representation of parties adverse to
the former client, or (2) facts relevant to the prior
representation are relevant and material to the
subsequent representation. Disqualification is
unwarranted here because, during its representation of
the City in 2006-2007, the law firm did not receive
confidential information from the City which can be
used against it in the prosecution of the 2009 tax
appeals adverse to the City. Also, the facts relevant
to the law firm’s prior representation of the City are
not relevant and material to its representation of the
taxpayers in the 2009 tax appeals.